Mediation Law

Mediation is a dispute resolution method in which parties to a private law dispute voluntarily select a neutral and expert third party (mediator) to help them resolve their conflict before or after filing a lawsuit. Mediation is a procedural law mechanism aimed at resolving disputes quickly and efficiently without litigation.

Mediation is categorized into two types:

Mandatory Mediation

For certain disputes, mediation is a prerequisite before filing a lawsuit. If a lawsuit is filed without attempting mediation, it will be dismissed due to the absence of a legal requirement. Some disputes subject to mandatory mediation include:

• Commercial disputes: According to Article 5/a of the Turkish Commercial Code (TCC), mediation is mandatory for all commercial lawsuits related to monetary claims and compensation.

• Labor disputes: Since January 1, 2018, mediation is required for disputes related to severance pay, notice pay, overtime pay, salaries, and other labor-related compensation.

Voluntary Mediation

In voluntary mediation, parties are not legally required to attempt mediation before filing a lawsuit. However, they may choose to resolve their dispute through mediation before going to court. This method applies to any private law dispute where the parties have control over the subject matter.

Who is a Mediator? How to Become a Mediator?

A mediator is a law school graduate with at least five years of professional experience who has received specialized training in mediation, communication, and negotiation techniques. To become a mediator, candidates must pass a mediation exam and register with the Mediation Registry maintained by the Ministry of Justice. Only registered mediators can legally conduct mediation sessions.

Mandatory Mediation in Commercial Disputes

Under Article 5/a of the Turkish Commercial Code, mediation is a prerequisite for lawsuits involving monetary claims and compensation. Without mediation, these cases cannot be directly filed in commercial courts.

A mediator must complete the process within six weeks from the date of appointment. In exceptional cases, this period can be extended by two additional weeks.

Mandatory Mediation in Labor Law

Under the Labor Courts Law No. 7036, mediation is required for the following disputes:

• Severance pay claims

• Notice pay claims

• Overtime pay claims

• Salary and wage disputes

• Annual leave pay claims

• Compensation for national and religious holidays

If an employee or employer files a labor lawsuit without attempting mediation, the case will be dismissed due to the absence of a legal requirement.

Employment Reinstatement Lawsuits & Mediation

Employees who believe they have been wrongfully terminated must first apply for mediation within one month of receiving their termination notice. If mediation fails, they may file a lawsuit within two weeks from the date of the final mediation report.

If the parties reach an agreement in mediation, they must clearly define the following terms:

• Reinstatement date of the employee

• Financial compensation for salary and benefits

• Compensation in case of non-reinstatement

Failure to specify these conditions will result in an unsuccessful mediation process, and the case will proceed to court.

Compulsory Mediation for Compensation Claims in Labor Law

1. Severance Pay Claims

   • Employees who meet the conditions for severance pay but fail to receive payment must first apply for mediation before going to court.

2. Notice Pay Claims

   • If an employment contract is terminated without proper notice, the affected employee is entitled to notice pay compensation. Any disputes regarding notice pay must go through mediation before litigation.

3. Overtime Pay Claims

   • Employees who work more than 45 hours per week are entitled to 150% of their regular hourly wage for extra hours. If they are not compensated, they must first apply for mediation before taking legal action.

4. Holiday and Leave Compensation Claims

   • Disputes over annual leave pay, unpaid wages for national and religious holidays, and salary claims must go through mediation before being presented to the court.

5. Defamation & Workplace Property Damage Disputes

   • Disputes arising from defamation between employer and employee or damage to workplace property must also be settled through mandatory mediation.

Note:
Cases related to workplace accidents, occupational diseases, and compensation claims arising from these incidents are NOT subject to mandatory mediation and can be filed directly in labor courts.

Legal Consequences of Failing to Attend Mediation

Both parties must attend the first mediation session. If one party fails to appear without a valid excuse, they will:

• Be responsible for all court expenses if the case proceeds to litigation.

• Lose their right to claim attorney’s fees even if they win the case.

If both parties fail to attend, each party will be responsible for their own litigation expenses in case of a lawsuit.

Mediation Costs & Payment

• If an agreement is reached, the mediation fee is shared equally between the parties unless otherwise agreed.

• If no agreement is reached, the first two hours of mediation are covered by the Ministry of Justice. Any additional costs are split equally between the parties.

• If a lawsuit is filed after failed mediation, the mediation cost will be considered a court expense and will be included in the final judgment.

Enforcement of Mediation Agreements

If parties reach an agreement, they may request an enforceability certificate from the competent court to give their agreement the same legal effect as a court decision.

If mediation occurs before filing a lawsuit, the enforceability certificate is issued by the civil court of peace.
If mediation occurs during litigation, the enforceability certificate is issued by the court handling the case.

Agreements signed by the parties, their lawyers, and the mediator are automatically considered enforceable court decisions without requiring an additional court ruling.

Mediation in Family Law (Upcoming Regulations)

Although not yet enacted, proposed laws aim to introduce mediation for certain family law disputes, including:

• Divorce cases

• Child custody disputes

• Spousal and child support claims

• Property division in divorce cases

Cases involving domestic violence or abuse will NOT be subject to mediation.

Confidentiality in Mediation

All mediation proceedings are confidential. Any statements, documents, or proposals made during mediation:

• Cannot be used as evidence in court

• Cannot be requested by a judge, arbitrator, or administrative authority

• Cannot be disclosed by the mediator, parties, or legal representatives

Violating confidentiality may result in up to six months of imprisonment and removal from the Mediation Registry.

Mediation vs. Court Litigation

Criteria Mediation Court Litigation Duration 3–6 weeks 1–3 years Cost Lower Higher Confidentiality Yes No Flexibility Yes, parties negotiate No, judge decides Legally Binding? Yes, with enforceability certificate Yes Relationship Preservation More cooperative Often adversarial

At Özocak & Altun Law and Consultancy, we provide expert legal services in mediation, guiding our clients through the process and ensuring that their rights and interests are protected in both mandatory and voluntary mediation cases.